UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GRATINIANO CASTILLO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:07-cr-00128-D-1)
Submitted: July 28, 2010 Decided: August 16, 2010
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gratiniano Castillo pled guilty to conspiring to
distribute and possess with intent to distribute five kilograms
or more of powder cocaine, in violation of 21 U.S.C. § 846
(2006). Although Castillo expressed a desire to withdraw his
plea, the district court considered and denied that motion and
sentenced Castillo to 480 months of imprisonment, within the
advisory Guidelines range calculated at sentencing. Castillo
timely appealed. On appeal, Castillo argues that the district
court erred when it denied his motion to withdraw his guilty
plea; he also seeks to challenge the length of his sentence.
The Government filed an answering brief in which it requested
that this court enforce the waiver provision in the plea
agreement and dismiss Castillo’s appeal of his sentence.
This court reviews a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion.
United States v. Lambey, 974 F.2d 1389, 1393-94 (4th Cir. 1992).
Fed. R. Crim. P. 32 provides that prior to sentencing, a
district court may authorize the withdrawal of a guilty plea if
the defendant shows a “fair and just” reason. A “fair and just”
reason to withdraw a plea is one that “challenges either [1] the
fairness of the Rule 11 proceeding wherein the defendant
tendered, and the court accepted, the plea or [2] the
fulfillment of a promise or condition emanating from the
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proceeding.” Lambey, 974 F.2d at 1394. In determining whether
a defendant’s proffered reason is “fair and just,” the district
court must balance six factors: (1) whether the defendant has
offered credible evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly asserted his
legal innocence, (3) whether there has been a delay between the
entering of the plea and the filing of the motion, (4) whether
defendant has had close assistance of competent counsel, (5)
whether withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste judicial
resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991).
Here, the district court did not abuse its discretion
when it denied Castillo’s motion to withdraw his guilty plea.
First, Castillo does not allege, nor does the record reflect,
that the district court’s Rule 11 colloquy was inadequate.
Therefore, the district court was entitled to rely on its
properly conducted plea colloquy and Castillo’s statements made
under oath. Moreover, the district court did not clearly err
when it concluded that Castillo failed to present credible
evidence showing that his plea was not knowing and voluntary.
See Moore, 931 F.2d at 250 (clear error standard applies to
district court’s findings).
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The district court carefully examined the Moore
factors, but concluded that they did not weigh in favor of
withdrawal. For example, although Castillo argued that he did
not expect the probation officer to attribute such a large
amount of cocaine to him, thereby exposing him to a harsh
Guidelines sentencing recommendation, the district court
specifically advised Castillo that he faced a potential sentence
of 360 months to life imprisonment. The written plea agreement
also notified Castillo of the potential for a life sentence.
Finally, the court appointed a translator to ensure that
Castillo understood the Rule 11 colloquy and the sentencing
hearing. * Thus, we conclude that the district court did not
abuse its discretion in evaluating the Moore factors.
Accordingly, we affirm the district court’s denial of Castillo’s
motion to withdraw his guilty plea.
Pursuant to a plea agreement, a defendant may waive
the right to appeal if that waiver is knowing and intelligent.
United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).
To determine whether a waiver is knowing and intelligent, this
*
Castillo is a native of Columbia who only speaks Spanish.
The district court inquired whether Castillo would be able to
understand the proceedings with the assistance of an
interpreter, and Castillo responded that he would. Accordingly,
the district court swore in a translator to translate court
proceedings from English into Spanish on Castillo’s behalf.
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court examines “the totality of the circumstances, including the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002) (internal quotation marks and citation omitted).
Generally, if the district court fully questioned a
defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
The question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
This court will enforce a valid waiver so long as “the issue
being appealed is within the scope of the waiver.” United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Here, the plea agreement contained an appellate waiver
as to Castillo’s sentence. In relevant part, Castillo agreed:
[t]o waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, to appeal whatever
sentence is imposed, including any issues that relate
to the establishment of the advisory Guidelines range,
reserving only the right to appeal from a sentence in
excess of the applicable advisory Guideline range that
is established at sentencing.
On appeal, Castillo does not contend that his appeal waiver was
not knowing and voluntary, nor does the record support such a
conclusion.
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Indeed, at the Rule 11 hearing, the district court
specifically called attention to the appeal waiver. Castillo
testified that he understood the terms of the agreement,
including the appeal waiver, and that he had reviewed it with
his attorney. Therefore, we conclude that the appeal waiver is
valid and enforceable.
On appeal, Castillo argues that the district court
abused its discretion in imposing a harsh sentence; however, 480
months’ imprisonment is within the recommended Guidelines range
of 360 months to life imprisonment established at sentencing.
Thus, Castillo’s sentencing claim falls squarely within the
scope of his valid appeal waiver.
Accordingly, we affirm Castillo’s conviction and
dismiss the appeal as to Castillo’s sentencing challenge. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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